Fair dealing

Fair dealing is a doctrine of limitations and exceptions to copyright which is found in many of the common law jurisdictions of the Commonwealth of Nations (which is largely descendant of the former British Empire).

Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories. In practice, common law courts might rule that actions with a commercial character, which might be naively assumed to fall into one of these categories, were in fact infringements of copyright as fair dealing is not as flexible a concept as the American concept of fair use.

Fair dealing in Australia

In Australia, the grounds for fair dealing are (sometimes known as the "moral rights" of the copyright holder):

• Research and study
• Review and criticism
• "Reporting the news"
• Legal advice (although the Crown is deemed to own copyright in federal statutes, and each State in state statutes).

Australia has a deeming provision which guarantees that fair dealing applies if you photocopy either (not more than one chapter), or (less than 10%) of a book or journal (this was a result of a successful lawsuit brought against a university library for "authorisation" of patrons' copyright infringement).

Regarding fair dealing under Crown copyright the Australian Copyright Act 1968, ss.176-178. Section 182A (inserted by Act 154 of 1980, s.23) provides that the copyright, including any prerogative right or privilege of the Crown in the nature of copyright, in Acts, Ordinances, regulations etc., and judgments of Federal or State courts and certain other tribunals, is not infringed by the making, by reprographic reproduction, of one copy of the whole or part of that work for a particular purpose (this does not apply where charge for copy exceeds cost).

Regarding the re-use of copyrighted images or drawings, the Australian Copyright Act does not impose a 10%-limit under its fair dealing provisions for the purpose of research and study. Instead, each and every such use for research or study must be evaluated individually to determine whether it is fair, similar to the notion of fair use in U.S. coypright law. Among the criteria used to determine the fairness of a use are the purpose and character of the dealing, the nature of the work, the possibility of obtaining the work commercially within a reasonable time, the effect of the use on the potential market for the work or on its value, and how much of a work is copied.

Fair dealing in Canada

The Canadian concept of fair dealing is similar to that in the UK and Australia. The fair dealing clauses of the Canadian Copyright Act allow users to make single copies of portions of works for "research and private study." Unlike the United States where fair use is seen as an allowable infringement, Canada's fair dealing is seen as not an infringement at all.

The 2004 ruling by the Supreme Court of Canada in CCH Canada Ltd v. Law Society of Canada has gone far in clarifying the concept of fair dealing in Canada.

In considering fair dealing it makes the following general observation: "It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively. ... 'User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.'"

It then establishes six principal criteria for evaluating fair use.

1. The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights."
2. The Character of the Dealing How are the works were dealt with? Was there a single or multiple copies. Were these copies distributed widely or to a limited group of people? Was the copy destroyed after after its purpose was accomplished? What are the normal practices of the industry?
3. The Amount of the Dealing How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing. In some cases even quoting the entire work may be fair dealing.
4. Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Could the work have been properly criticized without being copied?
5. The Nature of the Work Copying from a work that has never been published could be more fair than from a published work "in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair."
6. Effect of the Dealing on the Work Is it likely to affect the market of the original work? "Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair." A statement that a dealing infringes may not be sufficient, but evidence will often be required.

"These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair."

The Association of Universities and Colleges of Canada (AUCC), a well established lobbying group representing the educational sector in Canada is of the opinion that making a copy of the following for the purposes of private study and research is fair dealing:

• a periodical article of a scientific, technical or scholarly nature from a book or a periodical issue containing other works;
• a newspaper article or entry from an encyclopedia, annotated bibliography or similar reference work; or
• a short story, play, poem, or essay from a book or periodical containing other works.

The AUCC believes that faculty members or students can make a copy of parts of a book or other complete works under fair dealing. No hard or fast rules are available in Canadian law but a rough indicator would be 10% of a complete work. The AUCC also maintains that fair dealing applies not just to photocopying but also to other methods of reproduction – including the making of copies onto slides, microfiche or transparencies. For multiple copies and for copying in excess of the extent mentioned above, AUCC recommends acquiring licences from Access © , the Canadian Copyright Licensing Agency, one of the copyight licensing societies or copyright collectives in Canada.

Fair dealing in the United Kingdom

In the United Kingdom, "fair dealing" has always been the subject of dispute because the law never defines clearly the exact number of copies and the amount of the original materials allowed.

Under the Copyright, Design and Patents Act (1988) (CDPA), fair dealing is defined as "private study and criticism and review and news reporting" (s. 29, 30) Although not actually defined as a fair dealing, copyright in works is not infringed by incidental inclusion in an artistic work, sound recording, film, broadcast or cable program. It is also important to note that new regulations came into force at the end of October 2003 which reduced the research fair dealing exception to non-commercial research only.

CDPA permits individuals to make a single copy of a "reasonable proportion" of literary, dramatic, musical and artistic works for "research and private study" and "criticism, review and news reporting" ( s. 29, 30) under the terms of "fair dealing". The extent of "reasonable proportion" is not defined in the act.

Some higher education institutions in the UK interpret "reasonable proportion" as:

• One article in a single issue of a periodical or set of conference proceedings.
• An extract from a book amounting to 5% of the whole or a complete chapter.
• A whole poem or short story from a collection, provided the item is not more than 10 pages.
• In general, copying of sheet music is not allowed.
• Making more than one copy is also not allowed.

For copying beyond the boundaries set forth by these guidelines, universities and schools in the UK obtain licences from the UK Copyright Licensing Agency (CLA) for their staff and students a local copyright collective. Under these licences, multiple copies of portions of copyrighted works can be made for educational purposes.

See also

• Digital rights management

External links

• Australian Fair Dealing (statute)
• Fair dealing in Australia (PDF, 111 KB).
• Fair dealing for research and study in Australia (PDF, 26 KB).
• Canadian Fair Dealing (statute)
• CCH Canadian Ltd. v. Law Society of Upper Canada
• Canadian Access ©
• Association of Universities and Colleges of Canada Copyright Guide (pdf file)
• Fair dealing under Singapore law of 1987
• Fair dealing under Australian law
• A comparison of "fair dealing" variants